S. L. RAJGARHIA AND 3 ORS. Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) Both these applications have been heard together and will be governed by this -common judgment. The petitioners have moved this Court for quashing the order dated 7.5.1979, taking cognizance against the petitioners under Ss. 32(1) and 44(a)(1) of the Bihar Sales Tax, 5th Ordinance, 1977 (hereinafter referred to as the Ordinance). In order to appreciate the points it will be necessary to refer to some relevant facts. On 5.5.1979 a petition of complaint was filed by the Deputy Commissioner, Commercial Taxes, Intelligence Branch - -Opposite party No. 2 stating inter alia that two boxes of motor parts weighing about one quintal 95(sic) were transported by M/s. Tribeni Motors, Delhi vide Rly. receipt No. B 528327 dated 20.2.1978 in the name of the petitioner's firm and the said consignment was taken on delivery without presenting the permit as required under rule 38(1)(2) of the Commercial Taxes Manual Rules. Prior to that the sanction for prosecution as required under Sec. 44 sub -clause (5) of the Ordinance was given by the Commissioner, Commercial Taxes, who is the competent authority, against M/s. Progressive Motors Private; Ltd., Umesh Kumar Rajgarhia and Kutub Karamchari, employees of the firm. The learned Magistrate by order dated 7.5.1979 took cognizance as stated above and summoned the petitioners for trial. Being aggrieved by the aforesaid order the petitioners have moved this Court.

(2.) Mr. G.C. Bharuka, learned counsel appearing on behalf of the petitioners in both the cases has submitted that there is no sanction against the petitioners of Criminal Miscellaneous Case No. 2449 of 1980 and, therefore, the cognizance taken against them is bad in law. In this connection my attention has been drawn to the order of sanction, a copy of which has been filed and marked Annexure 2. Only three persons are mentioned as I have stated earlier and admittedly the name of Shri S.L. Rajgarhia and Shri B.K. Rajgarhia do not find place there. In my opinion the contention raised or behalf of the petitioners is well founded and has to be accepted. Sec. 44 sub -clause (5) may be usefully quoted in this connection:

(3.) Mr. Lala Kailash Behari Prasad, learned counsel appearing on behalf of the State has contended that those persons are the Directors of the Company and the name of the firm is mentioned in the order of sanction and, therefore, the two Directors can also be put on trial and it will be rule of evidence and it will be for those persons to show that they were not connected with that offence. This contention has absolutely no force and has to be rejected for the simple reason that the firm is not accused in the petition of complaint and unless there is specific sanction against the persons concerned, they cannot be put on trial. Mr. Prasad has then contended that cognizance has been taken of the offence and not of the offenders and, therefore, this point will not be available to the two petitioner. That is a central law but where a sanction is a pre -condition for prosecution then this argument will not be attracted. A similar point came up for consideration in the case of Dr. Guneshwar Singh, District Medical Officer of Health, District Board, Patna versus The State of Bihar and ors. ( : 1974 PLJR 511) and that was a case relating to Prevention of Food Adulteration Act in which a sanction is also necessary. The Court had refused to summon some more persons to be put on trial and when this matter came to this Court it was held that the prosecution is started on the report of competent authority and the law as -to sanction in such matter was not an empty formality but was meant to serve a very useful public purpose and the sanction was not only for the offence but for the offenders as well. This decision fully applies to the instant case. The last portion of the order of sanction clearly states that sanction has been accorded against the above named persons (underlined by me for emphasis). This also fully support the contention of the learned counsel appearing for the petitioners that sanction was accorded against three persons only and not against these petitioners. In that view of the matter cognizance taken against the petitioners in Criminal Miscellaneous Case No. 2442 of 1980 must be held to be bad. Next it has been contended by Mr. Bharuka that the transaction was inter -state transaction and, therefore, rule 38 of the rules will have no application. This rule has been framed under Sec. 32(1) of the Ordinance and runs as follows: